Scherer, Residential Landlord - Tenant Law in New York § 8:194, collects and summarizes numerous decisions on the issue of good faith. [Citations edited and links supplied where available]:

The application for recovery for personal use must be made in "good faith," and requires a showing that the landlord or a member of her/his family have actual intent to take occupancy of the unit. Thus:

• where landlord was not able to establish that her son was in position to take possession of unit at time of trial, good faith was not established and petition was dismissed. Dusza v Rela, NYLJ, Nov. 8, 1991, at 26, col 3 (App Term, 2d and 11th Jud Dists).

• where landlord seeking personal use eviction failed to present credible evidence that she was acting in good faith, her petition was dismissed with prejudice. SeeKamenoff v Ormaza, NYLJ, Nov. 1, 2000, at 31, col 2 (Civ Ct, Queens County, Katz, J.).

KAMENOFF v ORMAZA

Petitioner commenced this summary holdover proceeding against respondent to recover possession of Apartment #3L (the "subject apartment") located at 30-52 23rd Street, Astoria, New York 11102 ("the building") on the ground that petitioners wish to utilize the premises for their daughter pursuant to Section 2524.4(a) of the Rent Stabilization Code.

Petitioners are the owners and landlords of the building. Respondents are the rent stabilized tenants of record of the subject apartment. Petitioner served a Notice of Intent of Non-Renewal of Lease dated September 24, 1999 which notified respondents that their lease would not be renewed upon its expiration on January 31, 2000. The reason stated in the Notice was that the owners need the apartment for their daughter, Teodora who is 18 and a part time student at Long Island University-Brooklyn campus (NY city). Thereafter, when respondents failed to vacate the subject apartment on or before January 31, 2000, petitioners served respondents with a Notice of Petition and Petition holdover dated February 4, 2000.

The Court conducted a trial that lasted two days. Teodora Kamenoff, petitioner's daughter, testified in support of the application that she is engaged to be married and is planning to marry in December, 2000. She testified that currently she is a student at Long Island University and works as a hostess. The witness testified that she wants the subject apartment whether or not she marries, because her mother's apartment is too small. Biljali Faik, her fiancee testified that he intends to live at the subject apartment when he marries.

Lilliana Kamenoff, the named petitioner, testified that she is the registered managing agent for the building in question. She testified that there is another apartment in the subject premises (1L) which is currently vacant which she intends to use for a day care center during the day and at night her son will sleep in it. Ms. Kamenoff further testified that this apartment (1L) became empty July 30, 1999 but she did not offer it to her daughter, who became engaged August 4, 1999, because she intended to use it for her son, who, she knew as early as January, 1998, would need an apartment. The witness testified that she currently lives with her husband and daughter in a two bedroom apartment which is not big enough for three people. The petitioner also testified that apartment 1L, which is designated for the day care center, is presently occupied by her son, Nick, who moved into the apartment in December, 1999, and for which he pays rent. The witness testified that did not apply to DHCR for Apt. 1L to be "exempt." Mrs. Kamenoff testified that she is also seeking apartment 2L for her own use. She further testified that in March of 1999 Apartment 3R became vacant and was rented in April, 1999.

Petitioner's son, Nick Kamenoff, testified that since December 1999 he sleeps in 1L every night and on weekends. He further testified that he pays $995.00 per month rent to his mother and the electric bill for Apartment 1L. Nevertheless, he is not registered to vote at this address. He does not possess a driver's license nor does he have a telephone in the apartment because he has a cell phone. Petitioner's son further testified that his checking account address is 41-20th Avenue, Astoria, Apt 1B, which is a basement apartment and he simply uses it as a mailing address. Nick Kamenoff further testified that he works weekends and at night he takes courses at Baruch College.

Respondent, Lady Ormaza, testified that she has lived in the same apartment for 27 years with her husband and her son. She stated that the first floor apartment, 1L, is vacant and has been since October or November of 1999. She testified she has never seen the landlord's son in apartment 1L. She stated that she only saw the landlord's son in the building when he came with his father last year to fix something. Respondent offered into evidence a photo of the entrance to Apt 1L depicting a sign saying "Office" on the entrance door (Respondent's "A" & "B" in evidence). Respondent also testified that new tenants moved into Apt. 3R at the end of 1999 and that apartments 1L and 3R were empty at about the same time. Ms. Ormaza testified that she was in Court with the petitioner about two years ago when the petitioner tried to raise her rent.

Rosa Ochoa, a friend of the respondent, lives in the basement at the subject premises for the last eight years and testified that she is familiar with the petitioner's son Nick. She testified that he only comes to the building during weekends when something needs to be fixed, and he is always with his father. Ms. Ochoa further testified that she has never seen him in 1L at night or during the weekend. She stated that she sees petitioner's son about two or three times every two or three months and that she saw him for the first time by himself, the day before. The witness also testified that the only disagreement she had with the petitioners was about four or five years ago when when they tried to recover possesion of her apartment by alleging personal use.

Sandra Ochoa, a tenant in apartment 2L since 1991, testified for the respondent. She initially testified that before 1991 she had lived in another apartment in the building with her parents for 17 years. She further testified that she also never saw the petitioner's son, Nick, nor did she ever see anyone in apartment 1L since July, 1999 when it became vacant. Ms. Ochoa further testified that currently, she is being sued by petitioners in Housing Court because they are seeking her apartment. Her husband, Francisco, testified that he has never seen the landlord's son Nick in the building, let alone inside apartment 1L.

After consideration of the documentary and testimonial evidence admitted at trial, the Court makes the following findings of fact and conclusions of law. "Section 2524.4(a)(1) of the Rent Stabilization Code (RSC) exempts a landlord from offering a renewal lease to a tenant, and allows for the commencement of an action to recover possession upon the expiration of the existing lease, where the premises are to be occupied by either the owner herself, or her immediate family" (Schippers v. Mass, NYLJ, November 4, 1998, at 29, col. 1 [Civ Ct, Kings Co., Rodriguez, J.]). "Exclusion of a tenant from possession is counter to the purpose of the rent laws (i.e. 9 New York Code of Rules and Regulations (NYCRR) §2524.4(a) [New York City Rent Stabilization Code (NYC RSC)]; New York City Administrative Code (NYC Admin Code) §26-511(c)(9)(b) [New York City Rent Stabilization Law (NYC RSL)] where an owner seeks to recover possession for his or her personal use and occupancy. Therefore such provision is construed strictly" (Rudd v. Devine, NYLJ, February 11, 1998, at 26, col 4, [Civ Ct NY Co., Ryp, J.] citing Sommer v. NYCCAB, 93AD2d 481 [1st Dept 1983] aff'd 61 NY2d [1984]). Although the present Rent Stabilization Code does not explicitly refer to the term good faith with regard to recovering real property for personal use, case law interpreting RSC §2524.4(a)(1) has maintained this requirement for petitioners (Nestor v. Britt, 213 AD2d 255 [lst Dept 1995]). RSC §2524.4(a)(1) still requires such an owner to demonstrate good faith, but not a need for the apartment (Obloj v. Shaw), NYLJ, May 13, 1998, at 31, col 2 [Civ Ct Kings Co., Wendt, J]). "The purpose of the Legislature in establishing the Rent Stabilization Code was to prevent manipulations and to avoid schemes that are designed to circumvent the entire statutory scheme that was aimed at accomplishing a balance between good faith efforts of owners seeking living accommodations and tenants protected by the Rent Stabilization Law" (Samuel v. Ortiz, NYLJ, June 7, 1995, at 30, col 2 [Civ Ct, Housing Pt. Kings Co., Callender, J]). "If the owner who seeks an eviction can demonstrate that they have no reasonable alternative with respect to size, location or the clearly unsuitable living needs that their present apartment offers, then they have alleged circumstances that satisfy the "personal use" provisions of the RSC. However owners seeking personal use evictions bear a heavy burden of proof" (Samuel, supra).

In the instant case, the totality of the circumstances clearly demonstrate that the petitioner has not proceeded in good faith. The petitioner testified that she lives with her husband and daughter in a two bedroom apartment which she claims is too small. She makes this claim even despite the fact that at the time of the application she knew her daughter would be vacating the apartment they live in now. Petitioner's son, Nick, testified that he sleeps in apartment 1L every night yet he does not have a phone hooked up in the apartment and he receives his mail at another address. The petitioner claims she intends to use 1L as a day care center yet the apartment has a sign on it that says "office" and everyone concedes the apartment is empty at least during the day. She claims her son is paying her rent but no proof was offered of those payments nor did she register the apartment with the DHCR as exempt. Apt. 1L was available in September, 1999 when this action was commenced. Petitioner's daughter became engaged in August of 1999 but was not offered this apartment because petitioner testified that she knew her son was transferring from Monmouth to Baruch College in New York City and her intention was for her son to use the apartment. Her son moved into Apt. 1L in December of 1999 a period of four months after his sister became engaged and three months after Petitioner served the Notice of Owner's Intention Not to Renew Lease. Petitioner testified to the availability of Apt 3K within the same time frame. The Court finds that the owner had ample opportunity to move into these apartments but chose not to do so.

The Court finds credible the testimony of the respondent and her witnesses who testified that barring the times that the son of petitioner comes to fix something in the house with his father they never see him around the apartment building. Respondent's witnesses testified to various court proceedings in which the petitioner sought to either recover possession of the apartments or increase the rent apartments or trying to increase the rent.

Also relevant to this proceeding is "the 20 year rule" as it applies to respondent's tenancy. The 20 year rule is a provision found within the Emergency Tenant Protection Act (" ETPA") L. 1974 c. 576 §4 which in pertinent part states:

"Any provision of the regulations permitting an owner to refuse to renew a lease on grounds that the owner seeks to recover possession of the housing accommodation for his own use and occupancy or for the use and occupancy of his immediate family shall require that an owner demonstrate immediate and compelling need and shall not apply where a member of the housing accommodation ... has been a tenant in a housing accommodation in that building for twenty years or more. ..."

Respondent testified that she has been living in the apartment for 27 years, which means that respondent moved into her apartment in 1973. Tenancies that commenced as unregulated tenancies between July 1, 1971 and May 29, 1974, the effective date of the Emergency Tenant Protection Act ("ETPA") which was enacted to protect apartments that were decontrolled between 1971 and 1974) were subsequently brought under the Rent Stabilization Law that was in effect in 1969 (Rosenfeld v. Hall, NYLJ August 16, 2000 at 237, col 3 [Civ Ct, NY Co., Wendt, J]). The Emergency Tenant Protection Regulations (" ETPR"), first effective May 29, 1974 were enacted pursuant to the ETPA §17, L. 1974 Ch. 576 §4 (Id.). The ETPR §2500.4 contains additional protection for the tenant against eviction of a tenant of over twenty years based on a claim for use by the owner:

ETPR §2504.4(a)(2) provides:

"[t]he provisions of this subdivision shall not apply where a member of the household ... has been a tenant in a housing accommodation in that building, for 20 years or more ... ."

These regulations passed pursuant to the ETPA allow Respondent Ormaza to retain possession of the regulated apartment she has lived in for twenty-seven years. Respondent Ormaza is "thus in the diminishing class of tenants in New York City protected against eviction by owners who wish to recover an apartment for themselves by the prohibition in the ETPR, enacted under the authority of the ETPA. There is no conflict between the ETPR and the RSC. Rather the ETPR simply adds an important protection against dislocation of long-term tenants who have resided in their apartment since the period between July 1, 1971 and May 29, 1974" (Rosenfeld, supra). Thus, respondent's apartment is subject to and protected by the 20-year rule (Brusco v. Armstrong, NYLJ, July 12, 2000 at 28, col 1 [Civ Ct, NY Co., Lau, J]). "Simply stated the class of long term New York City tenants who became protected by the Rent Stabilization Law solely by virtue of the ETPA after moving into their apartments in the three deregulated years following vacancy decontrol, are protected by the ETPR from owner's use evictions" (Rosenfeld v. Hall, NYLJ August 16, 2000 at 23, col 3 [Civ Ct, NY Co., Wendt, J]).

For all of the above reasons, this Court finds that respondent Ormaza is a tenant protected by the ETPA and the rules legitimately promulgated thereunder (the ETPR), as a result of the fact that she became a tenant of the subject premises in the period between vacancy decontrol and the effective date of the ETPA (Rosenfeld, supra). Thus, Arturo and Lady Ormaza are protected against being evicted on the basis that the new owner wishes to recover possession of respondents' apartment for the use of the owner's daughter. Accordingly, this proceeding is dismissed with prejudice.

A trial was held in this holdover proceeding, in which petitioner Dimitrios Bourdouris seeks possession of the subject apartment for his own personal use. The respondent has resided in this rent stabilized apartment for 23 years. Both sides are represented by counsel.

Petitioner claims that he has been separated from his wife for approximately 2 years and that he has been living, in his brother's house on Staten Island and in his mother's apartment in the subject building. He states that he intends to live in the subject apartment, as it is located close to where his children live.

Pursuant to Rent Stabilization Code 2524.4(a), an owner may recover an apartment if he can establish a "genuine intention" to recover that apartment for use as his primary residence (Nestor v. Britt, 213 AD2d 255 [1st Dept 1995]). This intention "must be actual and genuine and not a subterfuge to remove occupant tenants, only to replace the premises on the market a short time thereafter" (Sobel v. Mauri, N.Y.L.J., December 12, 1984, p. 10, col. 4 [App Term 1st Dept]).

Petitioner does not have a written separation agreement with his wife. He has continued to live in the marital home for periods of time. He pays the mortgage on that house, he files his tax returns and receives mail at that address, and maintains the telephone in his name and keeps clothing, and belongings there. Respondent has called him during the summer of 2000 to complain about repairs and he answered the telephone at the house.

Petitioner testified that he remains on decent terms with his wife. On the eve of trial, petitioner filed for divorce. He did not provide a copy of the complaint. Pursuant to Section 170 of the Domestic Relations Law, since petitioner has not been living under a separation agreement for one year, his only cause of action for divorce would be a ground such as cruelty or abandonment. His testimony in this case would seem to contradict such grounds. Thus, it can only be concluded that the filing for a divorce is a sham, intended merely to bolster his position in the within proceeding.

Notably, petitioner did not call any other witnesses. His wife, a person most in a position to support his assertions, did not testify. Further, his brother and mother, who also have first hand knowledge of relevant facts, failed to testify. The Court draws a strong negative inference from the failure to produce these witnesses, as they have knowledge of material facts and would naturally be expected to testify on petitioner's behalf as to his current circumstances and his intentions with respect to the subject apartment (Leven v. Tallis Department Store, Inc., 178 AD2d 466 [2nd Dept 1991]: Jarrett v. Madifari, 67 AD2d 396 [1st Dept]).

The subject building contains 6 apartments, including respondent's and petitioner's mother's. All four of the remaining apartments became vacant during the period of time petitioner stated he was separated from his wife, and yet he failed to take possession of any of them. The failure to occupy the other apartments does not, by itself establish lack of good faith. However, it is a factor which may be considered in determining an owner's good faith intent (Reres v. Gabel, 19 AD2d 724 [2nd Dept 1963]; Basic v. Gabel, 21 Ad2d 874 [1st Dept 1964]).

Petitioner claimed he needed this apartment due to financial constraints of the mortgage on his house and expenses in running the subject building. Petitioner offered not one piece of documentary evidence with respect to his financial situation. Moreover, he failed to offer any explanation as to why this particular apartment was more suitable to his needs, e.g., size, layout, location, or condition of the apartment.

"A decision on the issue of good faith must rest on an appraisal of the totality of the facts in the case" (Basic Holding v. Gabel, 21 AD2d 874 [1st Dept 1964]). Here, petitioner gave contradictory testimony during trial and at his deposition about the status of his marriage, about spending his free time working two additional jobs rather than with his children and offered no explanation as to his desire for the subject apartment in particular. Most notably, he failed to call crucial witnesses: his wife, his mother and his brother. The Court finds that petitioner has failed to establish by a preponderance of the evidence that he has a good faith intention to occupy the subject apartment as his primary residence. Accordingly, the petition is dismissed.

The parties should arrange with the Clerk of Part 18P for the retrieval of their exhibits.

A copy of this decision and order is being mailed to both sides.

• where landlord sought to recover tenant's rent-stabilized apartment for his son's use, good faith was established by genuineness of his desire to have his own apartment for privacy, its proximity to work, and overcrowded nature of his parent's house. The fact that other apartments had been available in building in the past did not undermine landlord and his son's good faith. Malafis v Shannon, NYLJ, May 29, 2002 at 23, col 4 (Civ Ct, Kings County, Marton, J.).

MALAFIS v SHANNON

The court tried this owner's use holdover proceeding over the course of two days, January 24 and February 20, 2002 [FN1] . Post-trial briefs were filed and the matter was deemed submitted on March 14, 2002. After evaluating the testimony of the witnesses and the other evidence, the court grants petitioner a judgment of possession on the basis of the following findings of fact and conclusions of law.

The premises at issue is a two bedroom, rent stabilized apartment at 624 11th Street, Brooklyn, N.Y. It is located in a 17 unit multiple dwelling. Petitioners acquired the building nearly three years ago, i.e., pursuant to a deed dated July 23, 1999. Respondent is a 57 year old woman who has been a tenant of the premises for nearly a quarter of a century, i.e., since October 1, 1978. The rent reserved under the most recent lease, which expired on October 31, 2001, was $ 433.70 per month. Petitioners and respondent are landlord and tenant, the building is properly registered with the New York City's Department of Housing Preservation and Development, and the rents for the apartments in the building are properly registered with the New York State's Division of Housing and Community Renewal.

On July 16, 2001 petitioners served on respondent a notice dated July 13, 2002 stating that they would not renew the lease upon its expiration because they wanted "to withdraw the subject apartment from the rental market and use the same for the use and occupancy by their son, Nicholas Malafis, as his primary residence." Respondent did not move out when the lease expired on October 31, 2001 and petitioners began this proceeding the following month. A petition and notice of petition were duly served; the court file bears a notation to the effect that an answer was to be served by December 6, 2001, but no such pleading is in the file. Respondent appeared by counsel not later than January 20, 2002.

Petitioners have been trying for several years to obtain an apartment in one of their buildings for their son Nicholas. Malafis v. Evans, Civil Court, Kings Co., Index No. 52869/99, was an owner's use holdover that petitioners brought to recover possession of apartment C-1 at 325 First Street, Brooklyn N.Y. for Nicholas Malafis. That proceeding was dismissed by a decision and order (Sikowitz, J.) dated November 3, 1999 after a traverse. Malafis v. Evans, Civil Court, Kings Co., Index No. 51244/00, was an owner's use holdover in which petitioners sought anew to recover possession of apartment C-1 at 325 First Street, Brooklyn, N.Y. for Nicholas Malafis. That proceeding was dismissed pursuant to a decision and order (Marton, J.) dated June 22, 2000 denying petitioners' motion to strike one of the tenant's defenses. Petitioners appealed but the order was affirmed by a decision and order dated April 11, 2001 and petitioners' motion for reargument or, alternatively, for leave to appeal was denied by an order of the Appellate Term, 2nd & 11th Judicial Districts, dated June 28, 2001 (Malafis v. Evans, 2000 - 1441 QC). Two weeks later, petitioners served the notice of non-renewal described in the third paragraph of this decision and order.

Ordinarily, when a lease of a rent stabilized apartment expires, the landlord must offer the tenant a renewal. "[T]he right to a renewal lease is one of the cornerstones of the rent stabilization system," Caine v. Carreker, 116 Misc 2d 419, 420 (App Term, 1st Dep't., 1982). However, Rent Stabilization Code (9 NYCRR) 2524.4(a)(1) provides an exception for an "owner who seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence " The owner's intention to recover the premises must be genuine and the owner must be acting in good faith. Nestor v. Britt, 613 AD2d 255 (1st Dep't, 1995).

George Malafis testified that he wanted his son to have his own apartment. He testified that, including himself, there were a total of seven people living in the single family home where Nicholas was residing, that his [George's] oldest daughter also lived there with her husband, that she was pregnant, and that there would soon be eight residents of the home. He testified as well that it would take Nicholas about 5 minutes to get to work from the premises but that it now takes him as much as 30 minutes. Nicholas Malafis testified that he is 27 years old, that he wants to have his own apartment, that he has little privacy living under his parents' roof, and that he wants the premises as his own apartment because it is very near to his place of employment, to Prospect Park, and to a subway stop.

The court finds entirely credible the testimonies of George Malafis and Nicholas Malafis. The court is convinced of the good faith and genuineness of George Malafis' desire to recover possession of the premises for his son and the court is convinced of the good faith and genuineness of Nicholas Malafis' desire to have the apartment as his primary residence.

Respondent attempted to cast doubt on the good faith of petitioners and their son by eliciting testimony showing (a) that even though the premises is located in the back of the building, it is not likely to be as quiet as Nicholas Malafis expects because there is a courtyard in back of the building that is used by tenants of adjacent buildings and others for barbecues and parties when the weather permits; (b) that petitioners had not offered to their son any of the three other apartments in petitioners' buildings that became vacant after July 1, 2001; and (c) that the superintendent for the building in which the premises is located died in August 2001 yet petitioners did not offer the superintendent's apartment to respondent.

While the premises may be noisier than Nicholas Malafis anticipates, the court finds that respondent did not prove that either petitioners' or Nicholas Malafis' desire for the apartment was not or is no longer genuine. Inasmuch as petitioners have established their good faith and that of their son, the court can require no more. "The landlord complies with the statute's demands if he seeks the eviction with the honest intention and desire to gain possession of the premises for his own use." Matter of Rosenbluth v. Finkelstein, 300 NY 402, 405 (1950). The availability of the other apartments, even ignoring the evidence that three of them were renting for $1,600.00 to $2,000.00 per month, does not establish petitioners' lack of good faith. See, Matter of Campbell v. Reichman, 28 NY2d 950 (1971); see also, Matter of Berlinrut v. Leventhal, 43 AD2d 522 (1st Dep't, 1973) ("The owner is not required to occupy an apartment that is not controlled and thus diminish his income"); Parkash v. Barnes, NYLJ, May 11, 1989, p. 27 col 3 (App Term 2nd & 11th Jud. Dist.); Timko v. O'Mara, NYLJ, October 27, 1987, p. 16, col 3 (App Term 2nd & 11th Jud. Dist). The court holds that petitioners have proven their prima facie case and that respondent has not proven a defense.

The court is sympathetic to and troubled by respondent's plight. She has lived in the apartment for most of her adult life, and so far as appears, pays her rent on time and has otherwise been as good a tenant as a landlord might hope to have. Nonetheless, the court cannot close its eyes to the plain language of the Rent Stabilization Code. It is the province of the legislature, not the judiciary, to amend statutes so as to ameliorate harsh results such as the one required on the record here. Accordingly, the court grants petitioners a judgment of possession. The warrant shall issue forthwith. Pursuant to RPAPL 753 and so that respondent may find another place to live, execution shall be stayed through September 30, 2002 so long as respondent pays use and occupancy of $433.70 per month by the first of each month and so long as respondent pays by May 17, 2002 any arrears that have accrued to date.

The court attorney will mail copies of this decision and order to the parties, who are directed to retrieve to retrieve their exhibits from the Part O clerk by May 17, 2002.

Mujica & Goodman, New York City (Anthony F. LeCrichia of counsel), for appellant.McGuire & Zekaria, P.C., New York City (Colleen F. McGuire of counsel), for respondents.*273

OPINION OF THE COURT

Per Curiam.

Order dated June 21, 2000 reversed with $10 costs, tenants' motion to set aside the order and judgment after trial is denied, and the final judgment of possession is reinstated.

In this owner use holdover proceeding for possession of rent-stabilized apartment premises, Civil Court determined after trial that landlord sought in good faith to recover the premises for occupancy by his daughter. Subsequently, the trial court set aside its decision and dismissed the petition on the ground that since tenants occupied two contiguous apartments as a single primary residence, and one of the two was an "ETPA protected apartment," eviction was foreclosed under the so-called "20-year rule" precluding owner use proceedings against long-term tenants.

Because we conclude that Civil Court misapprehended the governing regulatory framework, we reverse and reinstate the court's original order of possession. The Emergency Tenant Protection Act of 1974 (L 1974, ch 576 [ETPA]) "is an enabling act, which empowered New York City and certain ... local governments to impose, or, as in New York City, where it already existed, to extend rent stabilization" (La Guardia v Cavanaugh, 53 NY2d 67, 74-75). Hence, by declaration of the New York City Council, rent stabilization coverage for housing accommodations within the city was extended to tenants in qualifying buildings who had entered into possession during the period of vacancy decontrol. The Rent Stabilization Code, as originally promulgated and subsequently amended (see, Administrative Code of City of NY § 26-511 [b]), contains no provision limiting the owner use remedy where the tenant has been in occupancy for 20 years or more (see, Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [2]). This limitation derives solely from chapter 234 of the Laws of 1984 which, as here relevant, afforded such protection only to rent-controlled tenants (see, New York City Rent and Eviction Regulations [9 NYCRR] § 2204.5) and to tenants protected by the ETPA in cities having a population of less than one million (see, McKinney'sUncons Laws of NY § 8630 [a]). Notably, chapter 234 did not engraft the 20-year rule upon that part of the ETPA addressed to housing accommodations in cities having a population of one million or more. In this regard, the operative language of the ETPA--which was not amended--merely states: "For cities having a population of one million or more, this act may be *274 implemented by regulations adopted pursuant to the New York city rent stabilization law of [1969], as amended, or as otherwise provided by law" (see, McKinney's Uncons Laws of NY § 8630 [b]). As we have seen, no regulation implementing the 20-year rule has, in fact, been adopted under New York City rent stabilization. Tenants' reliance upon section 2504.4 (a) (2) of the Emergency Tenant Protection Regulations (9 NYCRR [ETPR]) is inapposite since "these regulations ... apply to housing accommodations located in the counties of Nassau, Rockland and Westchester, which are subject to the Emergency Tenant Protection Act of 1974" (ETPR § 2500.8).

When the Legislature has specified the cases to which its enactment shall apply, and has failed to specify other particular cases, it is fair to conclude that the exclusion was intended (McKinney's Cons Laws of NY, Book 1, Statutes § 74). Thus, the absence from chapter 234 of any provision for rent-stabilized or EPTA tenants within New York City provides a strong indication that this was not a matter of mere Legislature oversight (see, Pajak v Pajak, 56 NY2d 394, 397). In any event, "we may not rectify any perceived omission of such a provision by providing one by implication" (518 W. 134th St. Tenants Assn. v Calderon, 181 Misc 2d 216, 217).

Petitioner appeals from an order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about May 23, 2007, which affirmed an order of the Civil Court, New York County (Maria Milin, J.), entered on or about May 17, 2006, granting respondent Elaine Stewart's motion to dismiss the holdover petition.

MAZZARELLI, J.P.

On this appeal we must determine whether Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2(b) requires an owner who seeks to occupy an apartment for his own use, pursuant to RSC 2524.4(a), to state the facts underlying his decision in the nonrenewal notice.

Appellant landlord is the owner of the building known as 459 West 43rd Street. Respondent has been a rent-stabilized tenant in apartment 1A in the building for nearly 30 years. In July 2005, the landlord served a notice on the tenant advising her as follows:

"PLEASE TAKE NOTICE, that your lease...will expire on October 31, 2005, and that your tenancy is hereby terminated as of October 31, 2005. Furthermore, the landlord will not renew your lease based upon the fact that the Landlord seeks possession of [the apartment] for the Landlord's own use. The Landlord seeks to recover possession of [the apartment] for the personal use and occupancy of himself as his primary residence in the City of New York."

The tenant did not vacate the premises and the landlord commenced a holdover proceeding in Housing Court. Respondent moved to dismiss the petition, arguing that the notice contravened RSC 2524.2(b), which provides:

"Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession" (emphasis added).

The tenant argued that the notice was jurisdictionally defective because it merely stated the ground for termination by tracking the language of RSC § 2524.4(a)(1). That section permits an owner to terminate a tenancy where he "seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence in the City of New York and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York..."

The tenant asserted that the plain language of RSC 2524.2(b) required the landlord to give a fact-based explanation of why the landlord was choosing to rely on that ground.

In opposition to the motion, the landlord argued that the notice as served was sufficient. He claimed that it was proper for an "owner's use" notice to simply track the language of RSC 2524.4(a). This, he argued, is because an owner establishes the existence of the "owner's use" ground simply by asserting that he intends to use the apartment for personal use as his primary residence. The landlord maintained that any additional facts in his notice would have been superfluous. He also posited that the tenant should have simply engaged in discovery, instead of moving for dismissal. By doing so, the landlord argued, the tenant would have learned that the landlord has an office in the building on the same floor as the apartment, and that the landlord desired to move into the apartment to shorten his commute to work.

The Housing Court granted the tenant's motion and dismissed the petition. It agreed with the tenant that the landlord's notice of nonrenewal merely tracked the language of RSC 2524.4(a) and that a recitation of the facts motivating the landlord's desire to occupy the apartment was required. Appellate Term unanimously affirmed, and this Court granted the landlord's motion for leave to appeal.

This Court has interpreted RSC 2524.2(b)[FN1] pursuant to its "plain language" and held that it must be "enforce[d]...as written" (Berkeley Assoc. Co. v Camlakides, 173 AD2d 193, 195 [1991], affd 78 NY2d 1098 [1991]). Thus, in Berkeley Assoc. Co. this Court affirmed the dismissal of a holdover petition in a nonprimary residence case, stating that the assertion in the notice that the tenants " do not occupy the Premises as [their] primary residence' simply stated the ground for the non-renewal. It was not a statement of facts supporting that ground." (id. at 194).

Similarly, where the owner is seeking to recover possession of an apartment for his own use and asserts only that he intends to occupy the apartment as his primary residence, he is "simply stat[ing] the ground for non-renewal." Under Berkeley Assoc. Co., that notice would be insufficient.

However, the landlord in this case asserts that Berkeley Assoc. Co. is inapplicable in an "owner's use" case because, he argues, unlike the case of a nonprimary residence, the facts supporting a decision not to renew a tenancy based on "owner's use" are, by necessity, the same as the "ground" for nonrenewal. In other words, the landlord maintains that all that an owner must establish to avail himself of the "owner's use" ground is his intention to recover the apartment for his own use, and to use it as his primary residence. He contrasts this with the nonprimary residence ground, which he notes depends on a showing of facts supporting the owner's allegation that the tenant does not primarily reside in the apartment. Indeed, the landlord claims that it is impossible to provide factual support in an "owner's use" notice because an owner's intent is "a state of mind not necessarily susceptible to a statement of facts."

This argument ignores the plain language of section 2524.2(b), which does not differentiate among the various types of grounds for terminating a lease. Rather, that section requires a statement of the ground and the facts underlying the ground in "[e]very notice to a tenant to vacate or surrender possession of a housing accommodation" (emphasis added). It does not create any exceptions for grounds which may or may not be "fact-intensive."

Moreover, the landlord's position is belied by his own statement, in his affidavit opposing the tenant's motion to dismiss the petition. There he identified the facts behind his intent to occupy the apartment, that is, the proximity of the apartment to his office and his desire to live closer to where he worked. Those were precisely the types of facts required by section 2524.2(b) and which, if proven, "establish the existence of such ground" (id.).

The landlord also asserts that when DHCR amended the Rent Stabilization Code in 1987 it tacitly negated any requirement that the notice of nonrenewal in an "owner's use" case state facts which, if proven, suggest that the owner is acting in good faith. This argument arises from the omission of the words "good faith" in RSC 2524.4(a)(1), the analog to section 54 of the "Old Code"[FN2]. Section 54 required a landlord to serve a notice before declining to renew a lease where, among other things, "the owner seeks in good faith to recover possession of a dwelling unit for his or her own personal use and occupancy or for the use and occupancy of his immediate family" (emphasis added). The landlord also argues that his position is supported by RSC 2524.4(a)(5), which had no precursor in the Old Code. It provides that:

"The failure of the owner to utilize the housing accommodation for the purpose intended after the tenant vacates, or to continue in occupancy for a period of three years, may result in a forfeiture of the right to any increases in the legal regulated rent in the building in which such housing accommodation is contained for a period of three years, unless the owner offers and the tenant accepts reoccupancy of such housing accommodation on the same terms and conditions as existed at the time the tenant vacated, or the owner establishes to the satisfaction of the DHCR that circumstances changed after the tenant vacated which prevented the owner from utilizing the housing accommodation for the purpose intended, and in such event, the housing accommodation may be rented at the appropriate guidelines without a vacancy allowance."

The amendment, the landlord posits, reflects DHCR's realization that an owner's good faith cannot be tested at the time the owner notifies a tenant that he or she intends to occupy an apartment but can only be divined in retrospect, after possession is recovered. This position is purely speculative and the landlord offers no support for it in the legislative history or anywhere else. Moreover, at the same time, the landlord acknowledges that an owner claiming "owner's use" is required to demonstrate his or her good faith at the trial of a holdover proceeding before recovering possession. These two positions are diametrically opposed and the landlord makes no attempt to reconcile them. Indeed, the landlord's interpretation of the Code and the case law would permit a legal sleight of hand whereby an owner could conceal the basis for a desire to occupy an apartment until a trial is already in full pitch. Such "trial by ambush" would cut against every notion of fairness found in this State's jurisprudence.

The landlord's interpretation of the amended Code section is unpersuasive for several other reasons. First, nothing in section 2524.4(a) addresses the requirements for a notice of non-renewal. Second, this new section is merely a re-working of the Old Code section. The words "good faith" have been removed from the language identifying the grounds in RSC 2524.4(a)(1). However, the concept that the owner must act in good faith is clearly embodied in the language of RSC 2524.4(a)(5) and accepted by all parties.

The argument that the penalties imposed by RSC 2524.4(a)(5) were intended as the sole remedy against a landlord whose intention to use the apartment personally turns out, in retrospect, not to have been genuine, is incorrect. Subsequent to the promulgation of that section, the Court of Appeals and this Court have continued to adhere to the rule that an owner is not entitled to a judgment of possession in the first instance if the owner cannot prove his or her good faith intention prior to evicting the tenant. For example, as recently as last year, the Court of Appeals considered the "owner's use" ground in Pultz v Economakis (10 NY3d 542 [2008]). The issue in that case was whether RSC 2524.4(a), as opposed to section 2524.5(a)(1) (which requires DHCR approval where the owner seeks to recover the apartment for a business use), applied where the owners desired to recover possession of all of the rent-stabilized apartments in a building so that they could convert them into a single-family dwelling and reside there. The Court held that the former section applied. In so doing, it stated that:

"we underscore that [the owners] may not recover the stabilized apartment units unless and until they establish in Civil Court (at holdover proceedings against plaintiffs) their good faith intention to recover possession of the subject apartments for the husband owner's personal use as the primary residence" (emphasis added) (10 NY3d at 548).

The good faith requirement was also referenced by this Court in Horsford v Bacott (32 AD3d 310 [2006]). In that case the landlords sought to recover possession of an apartment for use by their daughter. They testified at trial that the need for the apartment was motivated by the fact that other family members were moving into the room occupied by the daughter at their current residence. The issue on appeal was whether the daughter herself had to testify as to her intention to actually occupy the subject apartment. This Court, with two Justices dissenting, upheld the Housing Court's determination that the testimony of the daughter was unnecessary. However, the majority itself reiterated that the burden on the owners was to "prov[e] a good faith intention to have their daughter use the apartment." (emphasis added) (32 AD3d at 312).

The landlord further argues that any factual recitation in an "owner's use" notice would be futile because, unlike the case of a notice to cure, there is no immediate course of action the tenant can take that would be guided by the notice. In other words, the landlord claims that the tenant would be no worse off if she were to simply wait for a holdover trial, at which, through cross-examination of the landlord facilitated by pre-trial discovery, she could reveal that the landlord's intentions were not genuine. This argument is contrived and clearly fallacious. First, again, it ignores the plain language of RSC 2524.2(b), which requires a statement of the ground and the facts in "[e]very notice to a tenant to vacate or surrender possession of a housing accommodation" (emphasis added).

Second, the landlord does not explain why, if he is correct, a factual recitation in a notice terminating a lease based on the ground of nonprimary residence, which he acknowledges is unquestionably required, would not be similarly superfluous. After all, in a nonprimary residence proceeding it is also the case that the tenant cannot cure based on the information contained in the notice. Indeed, the need for facts in an "owner's use" notice is even more compelling than in a non-primary residence notice, where the tenant knows whether he or she is utilizing the apartment as his or her primary residence. In an "owner's use" case, only the owner knows what his or her true intentions are.

Third, the landlord's argument also fails because discovery is not available as of right in a summary proceeding (CPLR 408; 952 Assoc., LLC v Palmer, 52 AD3d 236 [2008]). Were a tenant served with a barebones notice like the one in this case to be denied leave to conduct discovery, he or she would be completely at sea in an ensuing holdover proceeding. The tenant would simply be unable to defend.

Last, the landlord's position is contrary to the notion of judicial economy. The lack of sufficient details to enable a tenant to assess, from the notice, whether the owner has a good faith intention of occupying the apartment, would generate a great number of holdover proceedings. A court proceeding would be required in each case for the tenant to confirm whether the nonrenewal notice is worth contesting. Vast resources would be preserved if the tenant could make that assessment upon receipt of the notice.

Finally, the landlord's position has been repeatedly rejected by the Appellate Term, First Department. That court has consistently held in "owner's use" cases that it is not enough for the nonrenewal notice to merely track the language of RSC 2524.4(a). For example, in Isdahl v Pogliani (22 Misc 3d 14 [2008]), the owners served a notice which merely stated when they acquired the building, and the fact that their daughter intended to occupy the apartment as her primary residence. The court held that the owners' failure to describe the circumstances surrounding their desire to have their daughter occupy the apartment "provided tenant with no more useful information than simply [alleging that the] owners want the apartment for...the use of an unnamed family member, the type of unadorned assertion[] which fall[s] far short of satisfying the Code's specificity standards" (22 Misc 3d at 15 [internal quotation marks omitted]).

In Haruvi v Rose (10 Misc 3d 137(A) [2005]), the owner's notice alleged only that he intended to vacate his apartment a few blocks away and occupy the tenant's apartment as his primary residence. In affirming dismissal of the petition, the Appellate Term stated that the notice "was entirely uninformative as [to] why [landlord] would rather live in the [tenants'] rent stabilized apartment than his current two story residence" (id. at *2 [internal quotation marks omitted]). The Appellate Term, Second Department, recently adopted the First Department's position (see Giancola v Middleton, 21 Misc 3d 34 [2008]).

Rather than distinguishing these cases, the landlord boldly states that they were wrongly decided. They were not. In these cases the Appellate Term correctly recognized that the plain language of RSC 2524.2(b) requires a nonrenewal notice premised on "owner's use" to afford the tenant enough information to prepare a defense to a subsequent holdover proceeding if he or she does not believe that the owner's intention is genuine. The notice of nonrenewal in this case was facially deficient because it failed to meet this standard.

Accordingly, the order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about May 23, 2007, which affirmed an order of the Civil Court, New York County (Maria Milin, J.), entered on or about May 17, 2006, granting respondent tenant's motion to dismiss the holdover petition, should be affirmed, with costs.

All concur.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about May 23, 2007, which affirmed an order of the Civil Court, New York County (Maria Milin, J.), entered on or about May 17, 2006, affirmed, with costs.

Opinion by Mazzarelli, J.P. All concur.

Mazzarelli, J.P., Saxe, Friedman, Acosta, DeGrasse, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2009

CLERK

Footnotes

Footnote 1: The New York State Division of Housing and Community Renewal (DHCR) promulgated the current version of the Rent Stabilization Code pursuant to specific authority delegated to it by the Legislature (see L 1985, ch 888, § 2; Festa v Leshen, 145 AD2d 49, 54 [1989]).

Footnote 2: The "owner's use" ground was eliminated in 1982, apparently through the inadvertence of the Rent Stabilization Association, which at the time was charged with the responsibility to promulgate the Code (see Rubman v Waller, 118 Misc 2d 116, 117 [Civil Ct NY County 1983]). DHCR reinstated the ground when it revised the Code in 1987.

A building owner who hoped to shorten his commute by reclaiming an apartment from a rent-stabilized tenant violated New York City's Rent Stabilization Code by failing to include sufficient details in the non-renewal notice, a state appeals panel has ruled.

Tenant Elaine Stewart argued that the notice she received was jurisdictionally defective since it did not give a fact-based explanation underlying Morton M. Hirsch's basis for recovering her apartment for his own use as a primary residence.

In a unanimous ruling, the Appellate Division, First Department, held in Hirsch v. Stewart, 5000, that merely tracking the language of Rent Stabilization Code §2524.4(a)(1), which permits an owner to end a tenancy when he seeks to recover possession for his own personal use or an immediate family member's use, provided the accommodation will be used as a primary residence, was not enough.

The panel, in a decision by Justice Angela Mazzarelli (See Profile), also rejected Mr. Hirsch's argument that providing further details in the notice would be superfluous.

Noting that Mr. Hirsch's stance had been "repeatedly rejected" by the Appellate Term, First Department, the panel held that his position also ran counter to the notion of judicial economy, since "vast resources would be preserved if a tenant" could determine upon receipt of the notice whether the owner had a good faith intention of occupying the apartment.

In July 2005, Mr. Hirsch, the owner of 459 W. 43rd St., served a nonrenewal notice on Ms. Stewart, a rent-stabilized tenant who had lived in the building for nearly 30 years.

The notice stated that Mr. Hirsch would not renew Ms. Stewart's lease based upon the fact that the "Landlord seeks possession of [the apartment] for the Landlord's own use" and "seeks to recover possession of [the apartment] for the personal use and occupancy of himself as his primary residence in the City of New York."

On a motion to dismiss the petition, Ms. Stewart claimed the notice violated Rent Stabilization Code §2524.2(b), which requires every notice to vacate or surrender possession of a housing accommodation, pursuant to §§2524.3 and 2524.4, to state the ground "upon which the owner relies for removal or eviction" and "the facts necessary to establish the existence of such ground."

Mr. Hirsch countered that the notice tracked the statutory language in §2524.4(a), and he argued that if Ms. Stewart had initiated discovery, she would have learned that he wanted the apartment back to shorten his commute to work.

On appeal, Mr. Hirsch maintained that a 1987 amendment to the Rent Stabilization Code meant he did not need to provide facts in his non-renewal notice.

Prior to the amendment, an owner who sought in "good faith to recover possession of a dwelling unit" for his or his immediate family's personal use had to serve a notice before failing to renew a lease.

'Purely Speculative'

Mr. Hirsch claimed the subsequent elimination of the words "good faith" from Rent Stabilization Code §2524.4(a)(1) reflected the New York State Division of Housing and Community Renewal's acknowledgment that an owner's good faith cannot be discerned when he serves a termination notice, and must be determined after recovery of the unit, an argument the First Department called "purely speculative."

Additionally, Justice Mazzarelli noted that this position "is diametrically opposed" to Mr. Hirsch's admission that an owner claiming "owner's use" must make a showing of good faith at a holdover proceeding before recovering possession.

"Indeed, the landlord's interpretation of the Code and the case would permit a legal sleight of hand whereby an owner could conceal the basis for a desire to occupy an apartment until a trial is already in full pitch. Such 'trial by ambush' would cut against every notion of fairness found in this State's jurisprudence," she wrote.

Additionally, the panel rejected Mr. Hirsch's argument that providing additional detail in an owner's use notice would be futile since a tenant could not take any action until a holdover trial, during which time discovery could uncover the genuineness of a landlord's intentions.

Noting that discovery is not available as of right in a summary proceeding, she concluded that a tenant served with a "barebones notice" who was denied leave to conduct discovery "would be completely at sea" and "unable to defend" in a holdover proceeding.

Finally, Justice Mazzarelli noted, Mr. Hirsch's position "is contrary to the notion of judicial economy" since it would require a court proceeding "in each case for the tenant to confirm whether the nonrenewal notice is worth contesting."

Landlord-Tenant—Rent Stabilization—Court Rejects Landlord's Effort to Recover Premises For Use of a Member of His Immediate Family

The subject premises is a rent-stabilized apartment (apartment). The landlord sought to recover possession of the apartment on the grounds that his daughter wanted the apartment for her primary residence, i.e., the landlord asserted that pursuant to Rent Stabilization Code (RSC) Section 2524.4, "he seeks to recover possession of the premises for the use of a member of his immediate family."

In order to prevail, the landlord had "to establish his good faith desire to recover possession of the premises for his daughter's occupancy as her primary residence." The landlord testified that he wanted his daughter and son-in-law to have the apartment. He claimed that "he would not require them to pay rent and that he would want in return only for his son-in-law to perform janitorial duties at the six-unit building…." The landlord acknowledged that "his daughter would perform managerial duties, such as collecting rent and filing building and rent registrations,…but that doing so would be no more than a continuation of what she was already doing for [landlord's] real estate business." The daughter testified that she wanted the apartment since she was currently living elsewhere with her husband and the apartment was larger than her present apartment and she would have access to a backyard.

The court rejected the landlord's claim. The court noted that the landlord had previously "sought on the same ground to terminate another tenant's occupancy of another apartment [apt. 'A']…in the same building" and when the landlord had regained possession of apt "A," the daughter had not moved into apt. "A."

In the prior case, the landlord had alleged that his daughter, then 22 years old and single, resided with the landlord in New Jersey, she attended college in Manhattan, she had to take a bus and trains to get to school Monday through Thursday and she would be seeking employment in NYC. He had stated that his daughter sought to live in Brooklyn, since it will be close to Manhattan and as a 22- year-old woman, she sought her own living space independent of the landlord and his wife. However, as noted, when the landlord regained possession of apt. "A," the daughter did not move in.

The daughter testified that by the time the landlord obtained possession of apt. "A," she had moved into her husband's apartment which was only a few blocks away from such apartment. However, the daughter could not remember with specificity, the date when she moved into her husband's apartment and the court declined to "credit this proffered explanation for not taking possession of the premises."

Additionally, the landlord had sought to terminate another tenancy in the same building, also on the grounds that his daughter needed the apartment (apt. "B") for her home. The landlord had represented that his daughter would occupy apt. "B" as her primary residence in NYC for at least three years from the date possession is obtained. At the time of this prior effort to recapture apt. "B" for personal family use, the daughter had been finishing her senior year in high school. Although the landlord did not recover possession of apt. "B" in a prior legal proceeding. apt. "B" did become vacant eight or nine years later, but the daughter did not move in.

The daughter had testified that she and her husband now live only a few blocks away from the apartment. Although she claimed that the apartment is larger than the apartment she now occupies, evidence showed that "the apartments have similar layouts and seem to be roughly the same size…." Measured by square footage, the apartment "may be somewhat smaller." The court found such testimony to be "less than accurate and [gave] it no probative weight."

Additionally, the daughter testified that "she preferred the [apartment] because there was a backyard…and her father had promised to remove part of the building's rear wall and to build stairs to the backyard from the rear of the premises." However, "no architect or engineer had been engaged to draw plans for that purpose and no permit" had been sought from appropriate authorities. Accordingly, the court declined "to give significant probative weight to [that] testimony." Thus, the court found that the landlord failed to "establish the requisite good faith by a preponderance of the evidence."